Tucson Herpetological Soc. v. Salazar

• Decision Date: 18 May 2009
• Docket Number: No. 07-16641.,07-16641.
• Citation: 566 F.3d 870
• Parties: TUCSON HERPETOLOGICAL SOCIETY; Defenders of Wildlife; Center for Biological Diversity; Horned Lizard Conservation Society; Sierra Club; Wendy Hodges; Francis Allan Muth, Plaintiffs-Appellants, v. Ken SALAZAR,<SMALL><SUP>*</SUP></SMALL> in his official capacity as Secretary of the Interior; Rowan W. Gould,<SMALL><SUP>**</SUP></SMALL> in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

566 F.3d 870

TUCSON HERPETOLOGICAL SOCIETY; Defenders of Wildlife; Center for Biological Diversity; Horned Lizard Conservation Society; Sierra Club; Wendy Hodges; Francis Allan Muth, Plaintiffs-Appellants, v. Ken SALAZAR,^* in his official capacity as Secretary of the Interior; Rowan W. Gould,^** in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, Defendants-Appellees.

No. 07-16641.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 16, 2009.

Filed May 18, 2009.

Neil Levine, Denver, CO, William J. Snape, III, Washington, DC, for plaintiffs-appellants.

Sambhav N. Sankar, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. CV 04-0075 NVW.

Before: JOHN T. NOONAN, A. WALLACE TASHIMA, and WILLIAM A. FLETCHER, Circuit Judges.

TASHIMA, Circuit Judge:

Conservation organizations and individual biologists (collectively "Plaintiffs") contend that the Secretary of the Interior's (the "Secretary") decision to withdraw a rule proposing that the flat-tailed horned lizard (the "lizard") be listed as a threatened species is contrary to the requirements of the Endangered Species Act ("ESA" or the "Act"), 16 U.S.C. § 1531 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. They appeal from the district court's order granting summary judgment in favor of the Secretary.

The district court had jurisdiction under 28 U.S.C. § 1331 and 16 U.S.C. § 1540(g)(1)(C) (authorizing "citizen suits" to compel the Secretary to perform non-discretionary duties required by the ESA). We have jurisdiction to review the district court's final judgment under 28 U.S.C. § 1291, and we reverse in part and remand.

STATUTORY BACKGROUND

The ESA provides "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." 16 U.S.C. § 1531(b). In service of this goal, the Act directs the Secretary to maintain a list of threatened and endangered species, and defines the phrase "endangered species" as "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6).¹ A threatened species is one "which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20). "The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." Id. § 1532(16).² The Secretary has delegated his authority to administer the ESA to the Fish and Wildlife Service ("FWS"). 50 C.F.R. § 402.01(b).

The ESA requires the Secretary to consider five factors when determining whether a species is threatened or endangered: (1) the present or threatened destruction, modification, or curtailment of the species' range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; and (5) other natural or man-made factors affecting the species' continued existence. 16 U.S.C. § 1533(a)(1); 50 C.F.R. § 424.11(c). The Secretary must reach a listing determination "solely on the basis of the best scientific and commercial data available to him." 16 U.S.C. § 1533(b)(1)(A).

FACTUAL AND PROCEDURAL BACKGROUND

The lizard at issue in this case is "a small, cryptically colored iguanid ... that is restricted to flats and valleys of the western Sonoran desert."³ 58 Fed.Reg. 62,624, 62,625 (Nov. 29, 1993). Its natural habitat stretches across parts of southern California, southwestern Arizona, and northern Mexico. In California, the lizard can be found in the Coachella Valley, the west side of the Salton Sea and Imperial Valley, and the east side of the Imperial Valley. In Arizona, the lizard can be found in the Yuma Desert south of the Gila River and west of the Gila and Butler Mountains. 68 Fed.Reg. 331, 332 (Jan. 3, 2003). Very little is known about the lizard's range in Mexico, but it has been observed south of the California border in Baja California, south of Arizona from the international border to the Piñacate Region, and around Puerto Peñasco and Bahía de San Jorge, Sonora.

FWS estimates that man-made factors are responsible for the destruction of 1, 103, 201 acres of the lizard's estimated 4, 875, 624-acre historic range. 71 Fed.Reg. 36, 745, 36, 749-51 (Jun. 28, 2006). Agricultural and urban development have resulted in fragmentation of the lizard's remaining habitat. 68 Fed.Reg. at 332. Fragmentation creates isolated sub-populations that, because of their reduced size, have an increased probability of extinction. 58 Fed.Reg. 62, 624, 62, 626-27 (Nov. 29, 1993). Remaining lizard habitat in the United States can be divided into four distinct geographical sections: the Coachella Valley, west side of the Imperial Valley/Salton Sea, and east side of the Imperial Valley in California, and the Yuma Valley in Arizona. 68 Fed.Reg. at 332.

1993 Listing

The Secretary first proposed listing the lizard as threatened in 1993, citing documented and anticipated population declines.⁴ See 58 Fed.Reg. at 62, 624. The proposed listing identified urban expansion, off-highway vehicle ("OHV") use, energy development, and military activities as the primary threats to the lizard's remaining habitat, and concluded that three of the five statutory listing criteria had been satisfied. Id. at 62,625-28.

Upon proposing a species for listing, the ESA requires the Secretary to make a final determination (or formally extend the time for making a final decision) on whether to list within twelve months. See 16 U.S.C. § 1533(b)(6)(A). That time period lapsed without the Secretary issuing a final decision, and Defenders of Wildlife, along with several of the plaintiffs in this action, sued the Secretary to compel a determination on whether or not to list the lizard. See Defenders, 258 F.3d at 1139. In response to a court order requiring a final decision within sixty days, the Secretary issued a rule withdrawing the 1993 proposed listing (the "1997 withdrawal"). 62 Fed.Reg. 37,852 (July 15, 1997).

The 1997 withdrawal relied, in part, on the adoption of the Flat-Tailed Horned Lizard Conservation Agreement (the "Conservation Agreement"). Id. at 37, 853-55. In 1997, seven state and federal agencies jointly entered into the Conservation Agreement, and agreed to implement a management strategy to address threats to the lizard's remaining habitat on public lands.⁵ Id. The parties to the Conservation Agreement agreed to take steps aimed at "reducing threats to the species, stabilizing the species' populations, and maintaining its ecosystem." In addition to reliance on the Conservation Agreement, the 1997 withdrawal concluded that population trend data did not conclusively demonstrate significant declines, and that many of the threats cited in the 1993 proposed listing had either been reduced or eliminated. See id. at 37,859-60. The Secretary also found that known threats to lizard habitat on private lands did not warrant listing, because adequate habitat existed on public lands to ensure the species' continued viability. See id. at 37, 860.

Defenders challenged the 1997 withdrawal in the U.S. District Court for the Southern District of California Defenders, 258 F.3d at 1140. In 1999, the district court entered summary judgment for the Secretary, and Defenders appealed. Id. We reversed and remanded, concluding that the Secretary had failed to consider whether the lost and threatened portions of the lizard's range amounted to a "significant portion" of the species' overall range, as the ESA requires. Id. at 1145.⁶

2003 Withdrawal

On remand in Defenders, the district court ordered the Secretary to reinstate the 1993 proposed withdrawal within sixty days, and to issue a final decision on listing within twelve months of reinstatement. 66 Fed.Reg. 66,384 (Dec. 26, 2001). Following a 120-day public comment period, the Secretary again issued a rule withdrawing the proposed listing (the "2003 withdrawal"). 68 Fed Reg. 331 (Jan. 3, 2003).⁷ Plaintiffs then brought this action challenging the 2003 withdrawal, arguing that the withdrawal failed to comply with the remand order in Defenders.

In 2005, the district court held that the 2003 withdrawal failed to comply with Defenders because it "assumed without explanation that large swaths of lost habitat were of no significance at all." The district court rejected Plaintiffs' other challenges to the 2003 withdrawal, concluding that the Secretary's assessment of threats to the lizard's current range was reasonable and supported by the evidence in the administrative record. The Secretary did not appeal the remand order. Pursuant to that order, the Secretary withdrew the 2003 withdrawal, and restored the lizard to proposed listing status. 70 Fed.Reg. 72,776 (Dec. 7, 2005).

2006 Withdrawal

In 2006, after another round of public comment, the Secretary again issued a rule withdrawing the proposed listing (the "2006 withdrawal"). 71 Fed.Reg. 36,745 (June 28, 2006). The 2006 withdrawal quantified the lizard's lost range, explained why that range is not "significant" within the meaning of the ESA, and incorporated the findings in the 2003 withdrawal by reference. Id. at 36,749-51. Plaintiffs then filed a supplemental complaint challenging the 2006 withdrawal.

In its final 2007 order, the district court granted summary judgment in favor of the Secretary. Plaintiffs appealed, challenging both the district court's 2005 order (insofar as it upheld the agency's assessment of threats to the lizard's current range) and its 2007 order (upholding the agency's assessment of the significance of the lizard's lost range).

STANDARD OF REVIEW

We review the...